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2015 DIGILAW 431 (KAR)

Nazirahmed v. The Deputy Commissioner, Belagavi

2015-04-15

B.VEERAPPA

body2015
Judgment :- 1. The petitioner filed the above writ petition challenging the order passed by the 1st respondent-Deputy Commissioner dated 26.02.2015 confirming the order dated 19.3.2012 passed by the Technical Assistant to the Deputy Commissioner and 2nd respondent-Ex-Officio Deputy Director of Land Records, Belagavi, as per Annexures D and C, alleging that while allowing the appeal filed by the present respondent-5, the 2 respondent- Technical Assistant to the Deputy Commissioner & Ex-Offkio Deputy Director of Land Records, Belagavi, has not passed any orders on the application filed by 5'1' respondent seeking for condonation of delay in filing the appeal and proceeded to decide the appeal on merits. Similarly, the order passed by the 2nd respondent has been confirmed by the 1st respondent-Deputy Commissioner by rejecting the review petition filed by the petitioner herein. Being aggrieved by the both the orders, the present writ petition is filed 2. I have heard the learned Counsel for the parties to the lis. 3. Sri. A.D. Shilledar, learned Counsel appearing for the petitioner has contended that the impugned orders passed by the respondents 1 and 2 are illegal and perverse and without authority of law. The impugned orders does not disclose whether the application filed under Section 5 of the Limitation Act was considered and disposed of before considering the appeal on merits. In the absence of passing any orders on the application filed by 5th respondent for condonation of delay, the impugned order passed by 2nd respondent and confirmed by the first respondent cannot be sustained in law. He submits that without condoning the delay in filing the appeal, the 2nd respondent does not get jurisdiction to decide the appeal on merits. Hence, he prays to quash the impugned orders by allowing the petition as prayed for. 4. Sri.G.R.Turamari, learned Counsel appearing for caveator/respondent-5 and the learned AGA appearing for respondents 1 to 4 sought to justify the impugned orders. But they are not" able to point out from the impugned orders whether the delav has been condoned before deciding the appeal on merits by the 2nd respondent. 5. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the entire material on record. 6. But they are not" able to point out from the impugned orders whether the delav has been condoned before deciding the appeal on merits by the 2nd respondent. 5. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the entire material on record. 6. The impugned order passed by the respondent No.2 as per annexure-C does not disclose that before considering the appeal on merits, the application for condonation of delay has been considered or not because there is no whisper in the impugned order about condonation of delay. Though the petitioner in his review petition or. the file of the 1st respondent- Deputy Commissioner has specifically pointed out that without condoning the delav in filing the appeal, the 2nd respondent has disposed of the appeal on merits, the 1st respondent has not considered the said contention on its merits and has hurriedly proceeded to affirm the order passed by the 2nd respondent, which is. illegal, perverse and cannot be sustained in law. 7. It is now well settled that when there is delay in filing the appeal or revision petition and application was filed for condoning the delay, the application for condonation of delay has to be decided in the first instance and only if the delay is condoned, the appeal or revision can be disposed of on merits and appeal or revision cannot be disposed of without giving any finding in the application for condonation of delay as the appellate authority or revisional authority will get jurisdiction to decide the appeal or revision on merits only after the delay is condoned and having regard to the fact that the 211Q respondent- Technical Assistant to the Deputy Commissioner and Ex-Officio Deputy Director of Land Records in the impugned order at annexure-C has disposed of the appeal without considering the application for condonation of delay and without affording an opportunity to the petitioner to substantiate the contention urged. Similarly, in review petition before the 1st respondent, though the petitioner has averred that delay has not been condoned by the 2nd respondent, the 1st respondent has lost sight of the said crucial aspect and has rejected the review petition confirming the order of the 2ndrespondent. Therefore, the impugned orders passed by the respondents 1 and 2 are liable to be set aside. 8. Accordingly, the writ petition is allowed. Therefore, the impugned orders passed by the respondents 1 and 2 are liable to be set aside. 8. Accordingly, the writ petition is allowed. The impugned orders at Annexures-D and C passed by respondents 1 and 2 are set-aside. The matter is remitted back to the 2nd respondent for fresh consideration, with a direction to consider the application filed under Section 5 of the Limitation Act for condonation of delay in filing the appeal in the first instance and thereafter to dispose of the appeal in accordance with law, m the light of the observations made herein above. All the contentions of both the parties to the lis are kept open to be urged before the appellate authority. The patties are directed to appear before the 2nd respondent on 29.04.2015 without necessity of waiting for fresh notice and the 2nd respondent is directed to decide the matter independently and in accordance with law, uninfluenced by any of the observations made during the course of this order.